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Former College Athletes Denied Access to TV Sports Contracts (Exclusive)

Bill Russell Getty Images

But NCAA president Mark Emmert will be speaking under oath next month about discussions to pay college athletes.

On Tuesday, a judge in San Francisco blocked an attempt by former NCAA athletes including Bill Russell,Ed O'Bannon, and Oscar Robertson to obtain "highly sensitive" TV sports contracts and other documents pertaining to an ongoing class action lawsuit that alleges the NCAA, its members and conferences and licensing partners are unfairly profiting off of athletes' images.

The denial of a motion to compel these documents was a tentative decision by U.S. magistrate judge Nathanael Cousins, but nevertheless is a blow to the ex-athletes' wish to gain information that would purportedly show a conspiracy that the NCAA forces collegiate sports stars to relinquish their rights as various colleges and corporations earn billions of dollars off their backs.

In his decision yesterday, Judge Cousins tentatively turned down one whopper of a subpoena request, including all television contracts concerning Division I football and basketball, all licensing agreements with "outside" licensing entities, revenue or royalty reports, all documents relating to the releases and consent forms that athletes must sign, all documents relating to copyright and licensing policies in collegiate sports, all documents relating to deals with videogame publisher Electronic Arts, and more.

The decision, if left to stand, would be a relief to Fox Broadcasting, which had argued last month that it would be quite burdensome to produce this, and that by allowing the plaintiffs to win an argument that networks must get the consent of athletes before airing their images, "it would be impossible to continue televising sports."

The decision would mean that Fox, the Big Ten conference and probably TBS won't have to share some of their most sensitive internal information with lawyers for ex-athletes, but the athletes still have hopes of obtaining contracts from other entities from other judges.

That's because, in the last few months, the U.S. judicial system has been subject to a nationwide scavenger hunt for all documents that underpin the big business of college sports. More than 30 law firms have been involved in an effort to get or fight off subpoenas.

Many judges around the nation have yet to make a final ruling on subpoena demands from former athletes. Among the still pending cases is one in Connecticut against ESPN, one in North Carolina against the ACC, and one in Alabama against the SEC.

The plaintiffs are hoping to find a sympathetic judge somewhere. Unlike ones in Texas and Ohio where subpoena motions against Conference USA and the Ohio Valley Conference, respectively, failed. Or a Georgia judge who on Tuesday transferred his case involving TBS to Judge Cousins in California.

There, Judge Cousins has been dubious about the "overly broad" and "unduly burdensome" nature of the plaintiffs requests. Besides the above-mentioned subpoena requests, the judge on Tuesday also tentatively rejected an attempt to procure from Fox and others documents that made reference to the ongoing litigation, discussions at trade association meetings, and documents concerning the amateur status of athletes including any proposed changes the status.

The judge's final order should come soon. It follows another ruling made by Cousins two weeks ago where he turned down an attempt to get NCAA universities to hand over documents. The judge determined that the plaintiffs had failed to establish that the NCAA has "control" of its member institutions.

The plaintiffs haven't completely thrown airballs, however.

Judge Cousins recently granted the plaintiffs' request to get NCAA President Mark Emmert to sit down for a three-hour deposition. Next month, in the midst of March Madness, Emmert will be forced to answer tough questions about the NCAA’s policies in the promotion of amateurism and competitive balance. Topics of discussion, according to the judge's decision, could be Emmert's opposition to a plan to pay collegiate athletes and his conversations with the NCAA membership about “concerns that commercialism is overwhelming amateurism.”